Harris, re [2003] NZLLA 221 (4 April 2003)

New Zealand Liquor Licensing Authority

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Harris, re [2003] NZLLA 221 (4 April 2003)

Last Updated: 1 March 2010

Decision No. PH 221/2003

IN THE MATTER of the Sale of Liquor Act 1989

AND

IN THE MATTER of an application by TUI HARRIS pursuant to s.123 of the Act for renewal of a General Manager’s Certificate

BEFORE THE LIQUOR LICENSING AUTHORITY

Chairman: District Court Judge E W Unwin
Member: Mr J C Crookston

HEARING at ROTORUA on 19 March 2003

APPEARANCES

Mr T Harris – applicant
Mr J Anderson – South Waikato District Licensing Agency Inspector – in opposition
Sergeant P Caldwell - New Zealand Police – in opposition

ORAL DECISION OF THE AUTHORITY

[1] This is an application by Tui Harris for the renewal of his General Manager’s Certificate. The certificate was first granted in Papakura on 7 May 2001. This application represents the first such renewal. Therefore it is regarded by the Authority as the most important application, because it is during that first ‘probationary’ year, that the reporting agencies have the opportunity to monitor the performance of the applicant.

[2] There are four criteria to which the Authority must have regard in considering such an application. These criteria are:

• [a] The character and reputation of the applicant;
• [b] Any convictions recorded against the applicant since the certificate was issued or last renewed;
• [c] The manner in which the manager has managed the sale and supply of liquor pursuant to the licence with the aim of contributing to the reduction of liquor abuse; and
• [d] Any matters dealt with in any report made under s.124 of this Act.
  

[3] In this case the Authority is concerned with Mr Harris’ character and reputation with convictions recorded against him since the certificate was issued. There were also adverse reports received from the District Licensing Agency Inspector and the Police. There is no evidence that Mr Harris has managed the sale and supply of liquor in any other way than with the aim of contributing to the reduction of liquor
[3] abuse. In other words there are no reported incidents of his behaving improperly as a manager.

[4] For the first six months or so, he worked in Papakura at the “Papakura Tavern” without incident. He then came to Tokoroa and was unemployed for a period of approximately two to three months. He started work at “Trees Tavern” in February 2002. He commenced work as a barman. Subsequently, he became the manager of the bottle store, and is also in charge of the TAB. Regrettably no work reference was produced at the hearing.

[5] The evidence before us today discloses that while unemployed, Mr Harris became involved in a drink driving incident. At around 11.30 pm on 14 December 2001, he was stopped by the Police. His level of intoxication was 856 micrograms of alcohol per litre of breath. This is over twice the allowable limit. Mr Harris has pointed out that he very much regrets the offending. We have no indication of whether he has taken any counselling or treatment for any possible alcohol problem. Both the Inspector and the Police have submitted that such offending is always regarded seriously, particularly if a person is the holder of a General Manager’s Certificate at the time of the incident. In this case Mr Harris was of the view that he may not have had future employment opportunities within the industry.

[6] It has to be said that had an application been made pursuant to s.135 of the Act, for the suspension of the manager’s certificate, then this Authority would probably have suspended the certificate for between one and two months. In other words we are inclined to the view that in cases where there is an isolated drink driving offence, a period of suspension is more appropriate than the finality of the refusal of a renewal of the certificate.

[7] Mr Harris compounded his offending by failing to complete a periodic detention sentence. He was the subject of a warrant to arrest. He is still in the process of completing that sentence. We acknowledge what has been said by both the Police and the Inspector that such conduct is not a good example to the patrons who may drink from time to time at the "Trees Tavern". There is always the concern that Mr Harris may display a casual attitude towards his work, and fail to check persons who are either under age or intoxicated.

[8] As the Inspector has submitted, we have high expectations of managers. Standards are being constantly raised, and managers are expected to take the lead. This case involves a difficult balancing exercise. Mr Harris has undertaken that if the renewal is granted, he will only use his manager’s certificate in the bottle store, and not for the running of an on-licence on his own, without the prior approval of the District Licensing Agency Inspector, or this Authority.

[9] We take the view that the risk of harm to others, and the possibility of an increase in the abuse of alcohol is less in an off-licence bottle store, than in a busy on-licence. We are prepared to accept the undertaking, and in the circumstances, give Mr Harris a further opportunity to pursue a worthwhile career in the industry. However the renewal will only be for a period of two years. This will effectively mean that on 7 May 2004, in approximately 12 months time, Mr Harris will again be required to apply for the renewal of his manager’s certificate. This will give the reporting agencies further opportunity to monitor his performance, to see whether he steps up to the standards expected of him.

[10] For the reasons we have endeavoured to articulate, the General Manager’s Certificate issued to Mr Harris is renewed for two years from 7 May 2002.

DATED at WELLINGTON this 4th day of April 2003

Judge E W Unwin Mr J C Crookston
Chairman Member

Tui Harris.doc(afw)